CHANNABASAPPA MUPPAYYA Vs. VEERAYYA ULAVAYYA HIREMATH

JUDGEMENT

(1.) THE first defendant before the trial court is the appellant herein and he is aggrieved by the judgment and decree passed by the lower appellant court in R. A. No. 15/1991, by which, the learned Judge of the lower Appellant Court confirmed the judgment and decree passed by the Trial Court in O. S. No. 42/1985, allowing the suit filed by the respondents-plaintiffs for declaration and permanent injunction.

(2.) THE brief facts shorn out of unnecessary details are to the effect that the plaintiffs 1 to3 being the; son of the fourth son, third son, and fifth son of original propositus Veerayya and 4th plaintiff being one of the grand sons of first son of above said Verrayya filed the suit against the appellant herein (adopted son of Muppayya-the sixth son of Veeraiah and the second defendant-being the son of first son of veerayya, for declaration and permanent injunction in respect of the suit properties by claiming that the plaintiffs and the second defendant were the only legal heirs entitled to succeed to the property of Muppaiah and it was the specific case of the plaintiffs that Muppaiah died issue less and the first defendant was not the adopted son of said Muppaiah because, Muppaiah and the first defendant belonged to different casts and further there was no custom of taking in adoption a person aged more than 15 years and that too a married person and therefore, adoption of the first defendant (appellant herein) by Muppaiah was not valid in law and the plaintiffs having become the legal heirs of deceased Muppaiah are therefore entitled to the relief sought for by them. The said suit was contested by the appellant herein by taking up the stand that the appellant is the adopted son of late Muppaiah and there is custom and usage of taking any person aged more than 15 years in adoption and also married persons in Lingayath community and the said custom has been prevailing for more than 100 years and as such, the adoption of the appellant is valid and legal and following the death of Muppaiah, the first defendant being the sole legal heir has been in possession and enjoyment of the suit property and he accordingly prayed for dismissal of the suit. The second defendant was placed ex-parte before the Trial Court.

(3.) BASED on the pleadings of the parties, the learned Trial judge framed as many as six issues and answered issues 1, 2, 4 and 5 in the affirmative and issue No. 3 concerning adoption of the appellant herein by the deceased Muppayya, in the negative and additional issues 1 and 2 were also answered in the affirmative. Consequent to the said finding, after appreciating the evidence lead in by the parties, the Trial court decreed the suit of the plaintiffs.